Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 304, Junio 1996

Caso núm. 1822 (Venezuela (República Bolivariana de)) - Fecha de presentación de la queja:: 08-FEB-95 - Cerrado

Allegations: Excessive period of conciliation for collective bargaining; anti-union closure of an enterprise

1. 499. The complaint is contained in a communication from the National Press Trade Union dated 8 February 1995.
2. 500. Given the Government's failure to reply to the allegations, the Committee has had to postpone the examination of this case on four occasions. At its meeting in March 1996 the Committee drew the Government's attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body at its 184th meeting (November 1971), it would present a report on the substance of this case at its next meeting, even if the observations or information requested from the Government had not been received in due time (see 302nd Report, approved by the Governing Body at its 265th Session (March 1996), para. 9). To date, no observations have been received from the Government.
3. 501. Venezuela has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 502. In its communication of 8 February 1995, the National Press Trade Union (SNTP) alleges that on 9 November 1993 it submitted a draft collective agreement to the labour inspectorate to be discussed, in a conciliatory way, with the enterprise "Editores El Nuevo País C.A." (publishing house for the daily newspaper El Nuevo País). Negotiations took place, with many ups and downs, for six months without resulting in an agreement, because of the refusal on the employer's side to meet the workers' basic demands. Given these circumstances, on 10 May 1994 the SNTP requested the labour inspectorate, in accordance with sections 475 et seq. of the Labour Code, to deal with the demands made in the draft collective agreement as if there were a dispute. In reply to this request, the labour inspectorate handed down a decision on the same date which, instead of setting in motion the corresponding legal proceedings, ordered the opening of "a round of conciliatory discussions between the parties, of a preliminary nature", thus preventing the start of the period of 120 hours required by the Venezuelan labour legislation before a strike may be declared. From that time onwards, a new, protracted and complicated compulsory "conciliation" procedure was initiated, during which the employer, when he attended the meetings, used the same arguments he had put forward during the previous months. All the requests made by the SNTP to initiate proceedings to be able to declare a strike were refused, on the grounds that "the conditions within the country were not propitious for strikes". According to the complainant organization, the employer meanwhile had enough time to draw up a plan allowing him to make adjustments to the bookkeeping to feign a financial crisis and resort to a closure as a means of preventing his workers from exercising their trade union rights. Indeed, on 25 November 1994, the SNTP received a communication signed by the employer's legal representative, informing it that the enterprise's activities would cease from 15 December 1994 onwards and that the workers would be laid off or dismissed. The complainant organization adds that only when it had received a similar communication did the Ministry of Labour order the labour inspector (the official who was originally in charge of the case) "to admit" the dispute nature of the list of claims and to initiate the corresponding proceedings - this was on 13 December, two days before the closure of the enterprise and seven months since the list of claims was first submitted to set in motion proceedings for a collective dispute; the legal proceedings were therefore only set in motion once the strike had lost any meaning.
2. 503. The complainant organization also alleges that, as was to be expected, the employer did not take any notice of such proceedings and, on the date mentioned above, closed the gates of the enterprise, compelling the workers to apply on the following days for the compensation to which, according to the employer, they were entitled. One month after the fraudulent closure, work in the enterprise was resumed and the newspaper El Nuevo País was published once more - obviously with a different staff (the employment relationships of 24 journalists and photographers were terminated), in the absence of any trade union or collective agreement. Finally, the complainant organization stresses that the legislation imposes a long and intolerable conciliation process which prevents the exercise of the right to strike.

C. The Committee's conclusions

1. 504. First of all, the Committee deeply regrets that the Government has not communicated the observations or information requested on the allegations pending, in spite of the time which has elapsed since the complaint was submitted and the fact that it was requested to submit observations or information on a number of occasions, including by means of an urgent appeal.
2. 505. In these circumstances, and in accordance with the applicable procedural rules (see para. 17 of its 127th Report, approved by the Governing Body at its 184th Session (November 1971)), the Committee finds itself obliged to submit a report on the substance of this case without being able to take account of the information it had hoped to receive from the Government.
3. 506. The Committee reminds the Government that the purpose of the whole procedure is to promote respect for trade unions in law and in fact, and the Committee is confident that, if it protects governments against unreasonable accusations, these must for their part recognize the importance of formulating for objective examination detailed factual replies to such detailed factual charges as may be put forward (see First Report, para. 31, approved by the Governing Body in March 1952).
4. 507. The Committee notes that in this case the complainant organization alleges that the legal proceedings for conciliation between the parties during collective bargaining is protracted and intolerable and prevents the exercise of the right to strike; it also alleges the closure by the enterprise "Editores El Nuevo País C.A." (false financial crisis) - after the statutory period of conciliation had been extended under a decision handed down by the administrative authority - which published the newspaper El Nuevo País one month later with a different staff, in the absence of any trade union or collective agreement.
5. 508. Regarding the complainant's allegation that the conciliation procedure is too long, the Committee notes that section 473 of the Labour Code stipulates that a trade union's right to submit a list of demands when it deems it appropriate shall in no event be curtailed during the collective bargaining process and that section 487 concerning the conciliation procedure states that the workers concerned shall not suspend their collective labour for at least 120 hours from the time they submit their list of demands. The Committee considers that these provisions are not incompatible with the principles of freedom of association.
6. 509. The Committee nevertheless wishes to draw attention to the complainant's claim that, although a list of demands was submitted on 10 May 1994, the Labour Inspectorate suspended the count of the 120 hours prior to which a strike may not be called, initiated conciliatory discussions and rejected the union's various petitions to call a strike; it only "recognized" the conflictual nature of the list of demands on 13 December 1994. On this point, the Committee wishes to observe that the requirements for calling a strike in a non-essential service must be reasonable and that an excessively protracted conciliation procedure does restrict trade union action and may even render a legal strike impossible in practice. The Committee recalls that conciliation procedures for facilitating collective bargaining or dispute settlement should be speedy and impartial and leave open the possibility of resorting to strike action after a reasonable period of time; such was not the case in this instance between May and November 1994, despite the fact that "Editores El Nuevo País C.A." is not an essential service. The Committee calls on the Government to ensure that in future the duration of the conciliation procedure preceding the calling of a strike complies strictly with the provisions of the law, i.e. the 120 hour-period stipulated in section 487 of the Labour Code which should not be extended unilaterally.
7. 510. Regarding the alleged closure of "Editores El Nuevo País C.A." on the pretext of a financial crisis, the Committee notes that according to the complainant publication of the newspaper El Nuevo País was resumed with a different staff, in the absence of any trade union (since the employment relationship of the former workers had been terminated) or collective agreement. The Committee emphasizes that, in these circumstances and in the absence of any reply from the Government, the revival one month later with a new staff of an enterprise that had been closed can hardly be seen as a coincidence unrelated to trade union activities. Consequently, the Committee considers that the closure of "Editores El Nuevo País C.A." may have been for anti-union reasons and calls on the Government to conduct an inquiry in this respect and if such intentions are proven to take measures to compensate, through legal proceedings, the National Press Trade Union and its former members in the enterprise concerned for the prejudice sustained, including by reinstating them in their jobs if they so wish. The Committee requests the Government to keep it informed in this respect.

The Committee's recommendations

1. 511. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee calls on the Government to ensure that in future the duration of the conciliation procedure preceding the calling of a strike complies strictly with the provisions of the law, i.e. the 120 hour-period stipulated in section 487 of the Labour Code which should not be extended unilaterally.
   • (b) The Committee considers that the closure of "Editores El Nuevo País C.A." may have been for anti-union reasons and calls on the Government to conduct an inquiry in this regard and, if such intentions are proven, to take measures, through legal proceedings, to compensate the National Press Trade Union and its former members in the enterprise concerned for the prejudice sustained, including by reinstating them in their jobs if they so wish. The Committee requests the Government to keep it informed in this respect.